Marriott v. Schultheis
553 So. 2d 1316
Fla. Dist. Ct. App.
1989
Check Treatment

Lead Opinion

BASKIN, Judge.

Finding that no genuine issue of material fact remains for decision, we affirm the summary judgment. See Holl v. Talcott, *1317191 So.2d 40 (Fla.1966). A mortgagor, has a right of redemption of the realty until certificate of title is issued to another. See Allstate Mortgage Corp. v. Strasser, 277 So.2d 843 (Fla. 3d DCA), aff'd, 286 So.2d 201 (Fla.1973); Akeley v. Miller, 264 So.2d 473 (Fla. 3d DCA), cert. denied, 269 So.2d 369 (Fla.1972); Cooper Smith Properties, Ltd. v. Flower’s Baking Co. of Fla., Inc., 432 So.2d 683 (Fla. 5th DCA), petition for review dismissed, 438 So.2d 831 (Fla.1983). In this case, Marriott “sold” his home to Schultheis on February 26, 1982. Unfortunately, the Mishkins had already purchased the property in foreclosure and assigned their interest to Schultheis. The certificate of title was issued on the 21st of February, a full 5 days before the Marriott-Schultheis sale. Thus, at the time Marriott purported to sell his home to Schultheis, his right of redemption had been extinguished. The Mishkins’ purchase of the property at foreclosure sale obviates the need to decide whether Schultheis promised to pay Marriott $60,000.

Affirmed.

JORGENSON, J., concurs.





Dissenting Opinion

COPE, Judge

(dissenting).

With respect to a somewhat complicated commercial transaction between the parties, the plaintiff/appellant alleged, in part, that he had loaned defendant/appellee Schultheis $60,000 which Schultheis had orally promised to repay. Appellee Milan Motors, Inc. had issued compensation checks to appellant Marriott in the amount of $60,000, which Marriott endorsed to Schultheis. Appellant Marriott paid the income taxes on the $60,000 amount. Appel-lee Schultheis concedes that he used the proceeds of the endorsed checks to purchase Marriott’s former home from the buyer at a foreclosure sale.

Appellant Marriott has testified under oath that there was an oral agreement by Schultheis to repay the $60,000. Schultheis has submitted an affidavit in which he says there was no such agreement. The appel-lees position that there was no equity of redemption in the property subsequent to the foreclosure misses the point. The $60,-000 amount was used for acquisition of the property. The flow of funds corresponds to Marriott’s account of the transaction. On this record there are disputed issues of material fact with respect to the oral agreement, and alternatively a claim for unjust enrichment to the extent of income taxes paid by Marriott. I would reverse the summary judgment.